Pierce v. Landmark Management Group Inc.

1.
Appeal and Error. An alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.

2.
Trial: Appeal and Error. A general assignment that the court
erroneously overruled objections, without supporting argument
as to why the rulings were erroneous or how they resulted in
prejudice, is insufficient to preserve the issue for
appellate review.

3.
Records: Appeal and Error. It is incumbent upon the appellant
to present a record supporting the errors assigned; absent
such a record, an appellate court will affirm the lower
court's decision regarding those errors.

4. ___:
___. Rulings of the trial court which do not appear in the
record are not considered on appeal. 5. Motions for New
Trial: Damages: Appeal and Error. A motion for new trial is a
prerequisite to obtaining appellate review of the issue of
excessive damages.

6.
Employer and Employee: Federal Acts. Employers are covered by
the Family and Medical Leave Act of 1993 when they employ 50
or more employees for each working day during each of 20 or
more calendar workweeks in the current or preceding calendar
year.

7. ___:
___. Separate entities are deemed to be a single employer for
purposes of the Family and Medical Leave Act of 1993 if they
meet the integrated employer test.

8. ___:
___. When the integrated employer test is met, the employees
of all entities making up the integrated employer are counted
to determine employer coverage under the Family and Medical
Leave Act of 1993.

9.
Administrative Law: Employer and Employee: Federal Acts. The
regulations promulgated by the U.S. Department of Labor
interpreting [293 Neb. 891] the Family and Medical Leave Act
of 1993 establish the test for determining whether legally
distinct companies may be considered so interrelated that
they constitute a single employer for purposes of the act.

10.
Employer and Employee. The integrated employer test involves
consideration of four factors: (1) common management, (2)
interrelation between operations, (3) centralized control of
labor operations, and (4) degree of common
ownership/financial control.

11. ___
. Under the integrated employer test, whether separate
entities are sufficiently integrated is not determined by any
single factor, but, rather, the entire relationship between
the entities is to be reviewed in its totality.

12.
Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court's grant of summary judgment if the
pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.

13.
___: ___. In reviewing a summary judgment, the court views
the evidence in the light most favorable to the party against
whom the judgment was granted and gives such party the
benefit of all reasonable inferences deducible from the
evidence.

14.
Trial: Juries: Evidence. Where the facts are undisputed or
are such that reasonable minds can draw but one conclusion
therefrom, it is the duty of the trial court to decide the
question as a matter of law rather than submit it to the jury
for determination.

15.
Summary Judgment: Evidence: Proof. A movant for summary
judgment makes a prima facie case by producing enough
evidence to demonstrate that the movant is entitled to a
judgment if the evidence were uncontroverted at trial. The
burden of producing evidence then shifts to the party
opposing the motion, who must present evidence showing the
existence of a material fact that prevents summary judgment
as a matter of law.

16.
Summary Judgment. If the movant for summary judgment
establishes a material fact, and that fact is not
contradicted by the adverse party, the court will determine
that there is no issue as to that fact.

17.
___. Mere formal denials or general allegations which do not
show the facts in detail and with precision are insufficient
to prevent an award of summary judgment. 18. Summary
Judgment: Affidavits. A party may not create an issue of fact
at the summary judgment stage by submitting an affidavit that
contradicts his or her earlier testimony.

19.
Rules of Evidence. In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by
such rules; judicial [293 Neb. 892] discretion is involved
only when the rules make discretion a factor in determining
admissibility.

20.
Rules of Evidence: Appeal and Error. When the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, an appellate court reviews
the admissibility of evidence for an abuse of discretion.

21.
Trial: Evidence: Appeal and Error. In a civil case, the
admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the
complaining party.

22.
Employment Security. Under Nebraska law, unemployment
compensation benefits are not a collateral source, because
they are funded by employer contributions. Generally, such
benefits should be deducted from a backpay award in
employment cases.

23.
Appeal and Error. A lower court cannot commit error in
resolving an issue never presented and submitted to it for
disposition.

24.
Rules of Evidence: Witnesses: Other Acts. The trial court has
discretion, pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev.
Stat. § 27-608(2)(a) (Reissue 2008), to admit evidence
of prior conduct to impeach a witness' credibility, so
long as the evidence is probative of the witness'
character for truthfulness.

25.
Rules of Evidence: Taxes. Where evidence of omissions or
inaccuracies on tax returns does not necessarily suggest
dishonesty, such evidence is generally too tenuous to be
probative of truthfulness or untruthfulness.

26.
___: ___. Evidence that a witness did not report certain
income on his or her tax returns, without more, is not
sufficiently probative of character for truthfulness or
untruthfulness to be admissible under Neb. Evid. R. 608(2),
Neb. Rev. Stat. § 27-608(2) (Reissue 2008).

27.
Verdicts: Appeal and Error. In determining the sufficiency of
the evidence to sustain a verdict in a civil case, an
appellate court considers the evidence most favorably to the
successful party and resolves evidential conflicts in favor
of such party, who is entitled to every reasonable inference
deducible from the evidence.

28.
Trial: Evidence: Witnesses: Juries: Appeal and Error. All
conflicts in the evidence, expert or lay, and the credibility
of the witnesses are for the jury and not for the appellate
court.

29.
Federal Acts: Attorney Fees. Under the Family and Medical
Leave Act of 1993 and the ADA Amendments Act of 2008, the
prevailing party is entitled to an award of reasonable
attorney fees.

Appeal
from the District Court for Douglas County: J. Michael
Coffey, Judge.

Sybille
Pierce sued her former employers claiming she was terminated
in violation of the Family and Medical Leave Act of 1993
(FMLA)[1] and the ADA Amendments Act of 2008
(ADAAA).[2] The trial court granted partial summary
judgment in favor of Pierce on the issue of whether the
employers were "integrated" and met the threshold
number of employees to be covered by the FMLA. The case was
then tried to a jury, which returned a verdict for Pierce on
both the FMLA and the ADAAA claims. The employers timely
appealed. Finding no reversible error, we affirm.

II.
FACTS

1.
Pierce Work History

From
2004 through 2011, Pierce worked for two companies, both of
which were owned by David Paladino. From 2004 through 2008,
Pierce was the operations manager for Landmark Management
Group, Inc. (Landmark), a property management business. From
2008 to 2009, Pierce managed a storage facility for
Cornhusker Road LLC, doing business as Dino's Storage
(Dino's Storage). While managing the storage facility,
Pierce also rented moving trucks to customers, but it is
unclear from the record whether the truck rental business was
operated at the time through Dino's Storage or through
another of Paladino's companies, Dodge Street, LLC. From
2009 until February 22, [293 Neb. 894] 2011, Pierce worked as
a legal assistant for Landmark and also continued renting
moving trucks. During this period, she was paid by Landmark
for her work as a legal assistant and was paid by Dino's
Storage for her work renting trucks.

In
2010, Pierce was diagnosed with "Idiopathic
Thrombocytopenic Purpura, " which is a blood disorder
that causes abnormally low platelet counts and predisposes
patients to a high risk of spontaneous bleeding. Pierce's
treatment included steroid injections, intravenous
immunoglobin infusions, and eventually a splenectomy surgery
in November 2010, for which she took paid vacation time.
After recovering from surgery, Pierce returned to work at
Landmark and Dino's Storage.

In
January 2011, Pierce's condition worsened and her doctor
recommended 4 weeks of infusion treatment using a
chemotherapy drug. After her first chemotherapy treatment,
Pierce sent her supervisor, Mary Anderson, an e-mail
describing her reaction to the treatment. In the e-mail,
Pierce advised Anderson she was going to talk with her doctor
about whether she should take "medical leave" while
undergoing the treatment. In reply to Pierce's e-mail,
Anderson wrote: "We would like you to come back when you
are able to be here every day and give 100% and not miss any
days in the foreseeable future." To this, Pierce
replied: "[0]k. I just want to make sure I understand
correctly. You want me to take off from now until this
treatment is over, which would be sometime in February. And
you would hold my position for me until then." Anderson
responded: "Yes, we want you to take the time off and
when you are able to come back at 100% you will have a
job." The following morning, Anderson sent an e-mail to
a group of Landmark and Dino's Storage recipients
advising, "FYI, [Pierce] is taking a medical leave until
sometime in February."

By
mid-February 2011, Pierce had finished her treatment and her
blood disorder was in remission. On February 21, Pierce
called Anderson and advised she was ready to return to [293
Neb. 895] work. The next day, Pierce had a meeting with
Paladino and Anderson. The parties do not dispute that during
this meeting. Pierce was told her former position had been
filled. However, the parties disagree about whether Pierce
was offered another position during the meeting. They also
disagree about whether Pierce quit her employment or was
terminated.

According
to Pierce, during the meeting, they discussed other possible
jobs within the companies Paladino owned, but Paladino wanted
assurances that Pierce's condition would not result in
significant absences. Pierce testified the meeting ended
without any job offer; Paladino and Anderson told Pierce they
wanted to talk things over and would call her later.
According to Pierce, Anderson called her later the same
evening to advise, "[Paladino] and I talked it over and
we're going to let you go." The next day,
Pierce's immediate supervisor at Dino's Storage sent
an e-mail to other Dino's employees which read:
"I'm going to keep this short so I don't say
something I will regret. [Paladino] fired [Pierce] yesterday
because she and her doctors couldn't guarantee that her
treatment will keep her permanently healthy."

Paladino
and Anderson denied terminating Pierce's employment.
According to both Paladino and Anderson, Pierce was offered
two different positions during the meeting. Pierce told them
she wanted to go home and speak with her husband about the
job offers. Anderson testified that when she telephoned later
that evening to follow up, Pierce turned down both job
offers.

Pierce
sued Landmark, Dino's Storage, and Dodge Street, claiming
she had been unlawfully terminated. We refer to these
entities collectively as "the employers."

2. The
Employers

Landmark
is a third-party management company. It is owned by Paladino,
and it manages various storage facilities, many of which are
also owned by Paladino. Landmark has separate management
agreements with each of the storage facilities. Maintenance
employees of Landmark generally report [293 Neb. 896] to
Landmark's main office at 2702 Douglas Street in Omaha.
Nebraska, and from there, they are dispatched to the various
storage facilities. The parties stipulated that at all
relevant times, Landmark had 38 employees.

Dino's
Storage operates a storage facility in Omaha. Dino's
Storage is a trade name used by the storage facility; the
actual entity is Cornhusker Road, and Paladino is the
controlling shareholder. Dino's Storage operates out of
the same space as does Landmark-2702 Douglas Street in Omaha.
The parties stipulated that Dino's Storage had 17
employees at all relevant times.

Dodge
Street owns the property at 2702 Douglas Street out of which
Landmark and Dino's Storage operate. Paladino is also a
shareholder of Dodge Street. According to Paladino,
"[t]he primary role of Dodge Street, LLC, is [to] own
and operate [the] storage facility." The parties
stipulated that Dodge Street had no employees during the
relevant time period. The role of Dodge Street in
Pierce's claims is not entirely clear from the record,
but no party suggests any error associated with its inclusion
in this lawsuit.

3.
Procedural History

(a)
Lawsuit

Pierce
filed an employment discrimination suit in the district court
for Douglas County, alleging violations of the FMLA, the
ADAAA, and the Nebraska Fair Employment Practice
Act.[3]Only the FMLA and the ADAAA claims
proceeded to trial.

In
connection with the FMLA claim, Pierce claimed the employers
were "integrated" for purposes of meeting the FMLA
employee numerosity requirement, [4] alleging:

[T]he [employers] share a common owner, . . . Paladino; [the
employers] operate out of shared office space located at 2702
Douglas Street, Omaha, NE 68131; all billing [293 Neb. 897]
and accounting for the [employers] is run out of the same
office space located at 2702 Douglas Street; and [the
employers] share common employees, including common
maintenance, information technology, and bookkeeping
employees. In addition . . . Pierce was employed by both
Landmark and Dino's.

In
their answer, the employers generally denied the allegations
in Pierce's complaint and raised the affirmative defense
that Pierce failed to mitigate her damages.

(b)
Summary Judgment

Pierce
moved for partial summary judgment, asking the court to find
as a matter of law that the employers were integrated for
purposes of the FMLA. The district court granted summary
judgment in favor of Pierce, finding "there is no
genuine issue of material fact as to ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.